Date: 20040804
Docket: IMM-2920-03
Citation: 2004 FC 1065
Montréal, Quebec, August 4, 2004
Present: The Honourable Mr. Justice Blais
BETWEEN:
ALI ASLAN GOKPINAR
Applicant
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision by the Refugee Protection Division (panel) dated April 3, 2003, that Ali Aslan Gokpinar (applicant) is not a Convention refugee or a person in need of protection.
FACTS
[2] The applicant is a citizen of Turkey. He is of Kurdish ethnicity, and of the Alevi faith. He is claiming refugee status in Canada on the grounds of race, religion, political opinion and membership in a particular social group.
[3] In his Personal Information Form (PIF), the applicant referred to the repeated persecution suffered by him and his family since the mid-1980s which, according to the documents provided about the country, corresponds with the severe oppression of the Kurds by the Turkish State. He alleges that he had to leave his native village because of persecution by soldiers who associated the Kurdish villagers with terrorist guerillas. The country documents confirm that a number of villages were deserted or closed by the soldiers during the 1980s to cut off the guerillas' supplies.
[4] After taking refuge in Mersin, a large city, the applicant was harassed by the authorities at his business and arrested because of his Kurdish identity in 1994, 1996, 1999 and 2001.
[5] The persecution reached its peak in the applicant's case when, in 2001, he was arrested, detained and tortured by the police for a 12-day period. He was accused of supporting the Kurdish cause, distributing pamphlets, writing graffiti. The applicant refused to sign the indictment. He was released as a result of pressure from the people of his neighbourhood. It was after this incident that he decided to leave Turkey, which he did six months later.
[6] Added to the persecution for being Kurd was the persecution for being Alevi. Alevism is part of the Muslim faith. Most Turkish Muslims are Sunni; Alevism is part of the Shi'ite branch. One of the differences between the two Muslim movements is the status of women. In Alevi society, women have more status and do not wear the veil. As an example of the discrimination suffered by the Alevi, the applicant stated that his daughter was being pressured at the exit of her school to wear the veil.
ANALYSIS
[7] Considering the circumstances, this is a case where the absence of a transcript justifies allowing the judicial review and referring it to the Refugee Protection Division for redetermination. I must add however that I do agree that the panel breached a principle of natural justice in failing to ensure that the hearing was recorded. The Federal Court of Appeal, in Kandiah v. Canada (Minister of Employment and Immigration), [1992] F.C.J. No. 321 (C.A.), ruled clearly on this issue and held that the absence of a transcript alone does not in itself justify the judicial review. There is no legislation that makes recording mandatory, and the merits of the decision are not dependant on whether or not the hearing was taped. The absence of a transcript of hearing is not in itself a breach of natural justice.
[8] The Supreme Court of Canada, in Canadian Union of Public Employees, Local 301 v. Montréal (City), [1997] 1 S.C.R. 793, confirmed the principle set out in Kandiah, and pointed out that the following test applied to determine if the absence of a transcript of hearing was determinative to a judicial review:
[80] In my view, the decisions in Kandiah and Hayes, supra, provide an excellent statement of the principles of natural justice as they apply to the record made of an administrative tribunal's hearing. In cases where the record is incomplete, the denial of justice allegedly arises from the inadequacy of the information upon which a reviewing court bases its decision. As a consequence, an appellant may be denied his or her grounds of appeal or review. The rules enunciated in these decisions prevent this unfortunate result. They also avoid the unnecessary encumbrance of administrative proceedings and needless repetition of a fact-finding inquiry long after the events in question have passed.
[81] In the absence of a statutory right to a recording, courts must determine whether the record before it allows it to properly dispose of the application for appeal or review. If so, the absence of a transcript will not violate the rules of natural justice. . . .
[82] The question we must therefore answer in the case at bar is whether the respondent was denied a ground of review by virtue of the absence of a recording of the hearing before the Council. . . .
[9] According to the Supreme Court and the Federal Court of Appeal, a miscarriage of justice does not result from the hearing not being recorded. Rather, it results from a situation where, in light of the circumstances, the absence of transcript deprives the party of a ground of review essential to his application. If the Court sitting in review has enough of the record to properly dispose of the application for appeal, the absence of transcript does not breach the rules of natural justice; however, if the Court is unable to make a determination because there is no transcript of hearing, the judicial review will be allowed.
[10] In reviewing decisions on refugee status, our Court has held many times that when a decision is based on a lack of credibility, and especially on contradictions and implausibilities in the applicant's testimony, the absence of a transcript of hearing proves to be an insurmountable obstacle making the Court unable to "properly dispose of the application for . . . review".
[11] In Libenge Likele v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No 1693 (F.C.T.D.), Tremblay-Lamer J. wrote:
[5] In the case at bar, the panel found the applicant's testimony to be full of unlikelihoods, inconsistencies and contradictions. Thus, the panel's decision was solely based on the applicant's lack of credibility.
[6] I have trouble seeing how the applicant can argue before this Court that such a finding is patently unreasonable, when he is unable to refer to his testimony at the hearing because there is no transcript.
[12] The problem with a decision based on a lack of credibility is that the evidence is principally presented at the hearing. Since the panel bases its decision on the inconsistencies of the testimony, it is essential that the Court sitting in review see what this testimony was in order to determine if the panel's findings are reasonable. As Martineau J. wrote in Singh v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 427:
[7] In light of the above, because of the absence of a transcript, it is very difficult, if not impossible, for this Court to review the general finding of lack of credibility by the panel, the validity of which is now being contested by the applicant. As we can see by reviewing the decision, this is not a case where the panel's finding is essentially based on the documentary evidence. In the absence of a transcript, it is impossible, unfortunately, to determine whether the panel's finding was based on the evidence, or whether the finding was made in a perverse or capricious manner. Furthermore, the applicant submitted certain documentary evidence that corroborates his version of the facts but, as stated above, the evidence was disregarded because the panel found that the applicant generally lacked credibility. In view of the fact that only the applicant filed affidavit evidence, and in view of the allegations in these affidavits and the Court's inability to review the finding on general credibility (Ahmed, supra), I believe that, in the best interests of justice, this application for judicial review must therefore be allowed.
[13] In Sikder v. Canada (Minister of Employment and Immigration), [1992] F.C.J. No. 915 (C.A.), Hugessen J. allowed an application for judicial review when the implausibilities and inconsistencies alleged by the panel were disputed by the applicants and when the absence of a transcript made verification impossible:
In the unsatisfactory state of the record, with an incomplete transcript supplemented by the adjudicator's notes and the applicant's own affidavit, we cannot be satisfied that the alleged inconsistencies and implausibilities relied on by the panel were in fact as described by them.
[14] Denault J. applied the same reasoning in Farouji v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 1253 (F.C.T.D.):
[6] In my opinion the recent cases, in stating that the lack of a transcript of the testimony at the hearing is not per se a breach of the rules of fundamental justice, have not ruled out the possibility that the absence of a transcript amounts to a denial of natural justice. In this case, the applicant father and his wife, in the absence of a transcript of their testimony, filed lengthy affidavits in support of their application in which they refute point by point the conclusions and inferences drawn by the members of the Convention Refugee Determination Division and state that these conclusions are not based on the evidence provided by their testimony. While it is true, as the respondent's counsel pleaded, that it is the respondent that risks being prejudiced by the absence of a transcript, since it is unable to demonstrate the reasonableness of the decision by relying on the testimony, it is no less true that the applicant also suffers prejudice from being unable, given the lack of a transcript of the testimony, to establish each piece of evidence and in particular the alleged contradictions or improbabilities in the tribunal's conclusions.
[7] I think that in the circumstances, given the absence of a transcript of the testimony of Ali Reza Mozaffari Farouji and Vajiheh Shabroo, and insofar as their claims and those of the members of their family were dismissed by reason of their lack of credibility, this Court is unable to verify the contradictions and improbabilities noted by the Refugee Division and to rule on the reasonableness of its conclusions.
[15] In his memorandum, the respondent alleges that the panel was entitled to believe that the applicant was not credible, and refers to some examples of "contradiction" between the statement made to the immigration authorities, the PIF, and the explanations given at the hearing. In response, the applicant claims that he was misunderstood.
[16] In this respect, some elements of the decision are surprising. For example, the panel stated that the applicant had been released on September 22, 2001, after having been detained and tortured. He left the country on December 13, 2001, as the documentary evidence establishes. Yet, the panel writes " . . . he did not leave the country until six months later . . . ".
[17] Another example: the panel points out that when he arrived in Canada the applicant declared that he was self-employed in a construction company. Yet, in his PIF he states that he had been a labourer from 1999 to 2001. The panel did not understand why he had not written this under the heading "last employer" which comes right after "profession/trade". The evidence shows that the applicant did not fill the questionnaire out himself, that he only answered the questions. We can suppose that in answering that he was self-employed, in the officer's mind he had answered the next question, and that this question about the last employer was never asked. He did not write anything on that line, not even a dash.
[18] The panel cast doubt on the applicant's subjective fear in his country, since he continued to live in the same neighbourhood even after being disturbed by the authorities in June 1999. The applicant testified, according to his affidavit, that it was preferable for him and his family to continue to live in a neighbourhood where they were surrounded by Alevi Kurds rather than be in a neighbourhood surrounded by Sunni Turks who would be hostile toward them. Besides, he did not leave the country in 1999 because of his family obligations. The panel did not explain in what way his answers were unreasonable.
[19] In his affidavit supporting this application for judicial review, the applicant states that the panel attributed statements to him that he had not made, and that the panel did not understand his answers and for that reason did not believe him. He states the following:
[TRANSLATION]
In his arguments my counsel argued that my testimony confirmed all the points of my written story at question 37 of my PIF; she pointed out the events of persecution that I suffered described in that question 37, including the fact that I had been forced to leave my village because of the soldiers, that I had been detained brutally and without reason, also for reasons tied to my identity, three times before the events of June 1999 and September 2001, that I had to close my business in 1999, that my children had problems at school, that I am attached to my culture and to my beliefs and that I can not and will not hide them.
She referred to various documents filed by the Hearing Officer and herself explaining the situation where I lived in Turkey as a Kurd coming from a village and obliged to live in a large city where monitoring, controls and abuses are constant.
She also emphasized the arbitrariness of the security forces and their impunity as well as the problems encountered by the Alevis particularly after the Islamic parties came to power.
[20] The Court is not able to determine whether, in effect, the applicant's testimony confirmed his story. Because it is an issue of credibility, which can only be verified at the hearing, the absence of a transcript in this case deprives the applicant of an essential means of review. For these reasons, I would allow the application for judicial review.
ORDER
THE COURT ORDERS that:
- the application for judicial review be allowed;
- the matter be referred to the Division for rehearing by a differently constituted panel;
- no question for certification.
"Pierre Blais"
Judge
Certified true translation
Kelley A. Harvey, BA, BCL, LLB
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-2920-03
STYLE OF CAUSE: ALI ASLAN GOKPINAR
Applicant
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: August 3, 2004
REASONS FOR ORDER AND ORDER: BLAIS J.
DATE OF REASONS: August 4, 2004
APPEARANCES:
Mimi Beaudry FOR THE APPLICANT
Nadia Sabik FOR THE RESPONDENT
SOLICITORS OF RECORD:
Mimi Beaudry FOR THE APPLICANT
Montréal, Quebec
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Montréal, Quebec
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